Tribes can be sued, court rules

A divided California Supreme Court ruled Thursday that Indian tribes can be sued for violating the state's campaign disclosure law even though tribes enjoy sovereign immunity under federal law.

The 4-3 ruling is unprecedented and may be appealed to the U.S. Supreme Court, which has consistently protected Indian immunity from lawsuits. The state high court justified its ruling by citing the growing role of Indian casino money in state elections and the state's need to protect against political corruption.

Justice Ming W. Chin, writing for the majority, conceded that Thursday's decision was an "abrogation of the sovereign immunity doctrine" that protects tribes from lawsuits.

But he said the ruling was narrow and justified by the state's need to provide "a transparent election process with rules that apply equally to all parties who enter the political fray."

Justice Carlos R. Moreno, writing for the dissenting justices, insisted that only Congress could change Indian tribes' immunity from lawsuits.

"The ideal of Indian tribal sovereign immunity and federal protection has existed side by side with the reality of Indians massacred and dispossessed from their land by state and private interests or more recently, of Indians living in poverty as second-class citizens," Moreno wrote.

Now that some tribes are growing wealthy from casinos, "the ideal of tribal sovereignty is becoming more concretely realized," and any need to modify it must come from Congress, Moreno wrote.

Thursday's ruling permits the state's Fair Political Practices Commission to sue the Agua Caliente Band of Cahuilla Indians, a federally recognized tribe in Palm Springs, for failing to properly report millions of dollars in campaign contributions.

The watchdog panel said the tribe did not follow the law when it contributed more than $7.5 million to campaigns in 1998, $175,200 in the first half of 2001, and $426,000 in the first half of 2002.

One of the alleged contributions made in 2002 went to support a ballot initiative that would have authorized $15 million a year for eight years to fund several projects, including a passenger rail line from Los Angeles to Palm Springs, where the tribe runs a casino.

The Fair Political Practices Commission requires full disclosure of contributions in political campaigns, both from the donors and the recipients. The commission sued the tribe, arguing that it had violated the disclosure law in making the contributions from 1998 to 2002. The lawsuit seeks penalties and a court injunction.

The tribe argued the doctrine of sovereign immunity shields it from lawsuits and appealed to the California Supreme Court after losing in the trial and appeals courts.

In ruling against the tribe, the court majority admitted that the U.S. Supreme Court has consistently affirmed the sovereign immunity doctrine.

But the majority said the high court also has "grown increasingly critical of its continued application in light of the changed status of Indian tribes as viable economic and political nations."

California has the right to regulate its electoral process under the U.S. Constitution's 10th Amendment, which protects state rights, and the guarantee clause, which gives states the duty and power to maintain a republican form of government, the majority said.

Without the ability to enforce tribal compliance, the Political Reform Act of 1974 would be substantially weakened, Chin said. The court's decision, he wrote, would apply only to attempts to enforce the campaign laws.

The tribe had insisted the state had other means of enforcing its campaign laws, including discussions with the tribe on a government-to-government basis or acquiring the donation information from other sources, and offered to enter into a voluntary compliance agreement with the state.

But the majority rejected the tribe's proposals.

"Preserving the integrity of our democratic system of governance is too important to compromise with weak alternative measures that the state may not be able to enforce," Chin wrote.

In the dissent, Justice Moreno said the U.S. Supreme Court "has not wavered from the principle that whatever problems arise from the conflict between Indian and state sovereignty are matters for Congress, exercising its plenary power over Indian affairs, to solve."

The federal Constitution gives states "no power to abrogate Indian sovereign immunity" because the states ceded such powers to the federal government when they ratified the Constitution, wrote Moreno, joined by Justices Joyce L. Kennard and Kathryn Mickle Werdegar.

Moreno noted that the Agua Caliente band has been willing to enter into an agreement to waive its immunity for political reporting and has practical reasons for doing so.

"A tribe concerned with preserving its own sovereignty while at the same time seeking to maintain good relations with the government and the citizens ... may recognize that concessions are necessary to promote its own long-run interests," Moreno wrote in Agua Caliente vs. Superior Court.

A lawyer and a spokeswoman for the Agua Caliente band refused to say whether it would appeal the ruling to the U.S. Supreme Court. The tribe issued a statement from tribal Chairman Richard M. Milanovich, who expressed disappointment and said the tribal council would "decide what further actions it may take."

The tribe owns about 31,500 acres in a checkerboard pattern in the Palm Springs area and has about 400 members, a spokeswoman said.

Fair Political Practices Commission Chairwoman Liane Randolph called Thursday's ruling "extremely important" toward ensuring that all participants in the political process follow the law.

She said the tribe has been reporting its contributions and lobbying activities on what it calls a voluntary basis since 2002, "but we think an essential element of the law is the ability to enforce it."